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Belarus violated human rights in fining authors of a petition
Friday, 02 August 2013 17:07

 

Yasinovich and Shevchenko v. Belarus (1835/2008 and 1837/2008)

 

Summary

 

In March 2013, the Human Rights Committee was asked to consider whether Belarus had violated its obligations under the International Covenant on Civil and Political Rights in imposing administrative fines that restricted an individual’s freedom of expression. 

 

The communication was submitted by two Belarusian nationals under the Optional Protocol to the Covenant.

 

Background

 

From 27 June to 27 July 2007, the authors of the communication, Anton Yasinovich and Valery Shevchenko, picketed in protest against legislation abolishing certain social benefits together with other residents of Novopolotsk. The authors had been granted prior approval for the protest by the Novopolotsk authorities. In the course of their protest, the authors collected signatures for a petition expressing support for the recall of members of the Belarus Parliament representing Novopolotsk that had voted in favour of the legislation.

 

On 21 and 24 September 2007, the authors were charged separately under the Administrative Offences Code. The authors were accused, in particular, of having violated articles 130-137 of the Electoral Code, which governs the procedure for recalling a member of parliament. On 25 September 2007, the Novopolotsk City Court found the authors guilty of having committed an offence under article 9.10 of the Administrative Offences Code and fined the authors 775,000 and 1,085,000 Belarusian roubles respectively (approximately US$360 and US$500 at that time).

 

On 1 and 4 October 2007, the authors filed separate appeals with the Vitebsk Regional Court. The authors based their appeals on, among other things: (i) the right to collect signatures under article 135 of the Electoral Code; (ii) the right of collective appeal under article 40 of the Belarus Constitution; and (iii) the guarantee of freedom of thought and expression under article 33 of the Belarus Constitution and article 19 of the Covenant. On 10 and 17 October 2007, the Vitebsk Regional Court dismissed the authors’ appeals.

 

On 19 November and 12 December 2007, the authors submitted separate appeals against the decisions of the Novopolotsk City Court and the Vitebsk Regional Court to the Chairperson of the Supreme Court. On 11 January and 11 February 2008, the Deputy Chairperson of the Supreme Court dismissed the authors’ appeals, concluding that the lower courts had correctly ruled that their actions contravened article 9.10 of the Administrative Offences Code.

 

The authors initially submitted their communications to the Committee separately on 7 May and 21 June 2008. On 20 March 2013, the Committee decided to join the communications in view of their factual and legal similarity in accordance with Rule 94(2) of the Committee’s Rules of Procedure.

 

The authors claimed that, by imposing an administrative fine, Belarus had violated its obligation to uphold the authors’ right to freedom of expression under article 19(2) of the Covenant.

 

The Committee’s decision

 

Belarus contested the admissibility of the authors’ claims under article 5(2)(b) of the Optional Protocol on the grounds that neither author had submitted a complaint to the Prosecutor General. However, the Committee concluded that such a means of appeal was outside the scope of article 5(2)(b) due to it being dependent on the discretionary power of a judge or prosecutor. As such, the Committee found that the authors had exhausted all available domestic remedies and declared the authors’ claims to be admissible under the Optional Protocol.

 

On the merits, the Committee recalled its General Comment No. 34 in which it stated that article 19(2) of the Covenant protects all forms of expression including political discourse. As to the requirement under article 19(3) that any restriction on the exercise of the right to freedom of expression be “provided by law”, the Committee also observed that such laws must be necessary to protect the rights or reputations of others or for reasons of national security, public order or public health.

 

While the Committee recognised the need for a prescribed procedure for the recall of a member of parliament, it considered that there was no compelling reason to limit public dialogue relating to such procedure or the right of citizens to express their support for such a procedure. The Committee noted that the authors’ collection of signatures in support of recalling certain members of parliament was entirely distinct from the actual recall procedure under articles 130–137 of the Electoral Code. The authors’ actions therefore did not initiate the recall procedure in an unlawful way.

 

The Committee also observed that Belarus had not advanced any argument as to why the administrative sanction imposed on the authors was legitimate for the purposes of article 19(3) of the Covenant. In this regard, the Committee recalled that the burden of proof under article 19(3) rests on the State. In the absence of any explanation from Belarus, the Committee concluded that the restriction on the exercise of the authors’ right to freedom of expression could not be deemed legitimate by the operation of article 19(3). On this basis, the Committee found that Belarus had breached article 19(2) of the Covenant.

 

The Committee therefore concluded that Belarus was under an obligation, in accordance with article 2(3) of the Covenant, to provide the authors with an effective remedy. Specifically, the Committee recommended that Belarus reimburse the authors with the present value of their fines and any legal costs incurred by them, as well as provide them with adequate compensation. The Committee also observed that Belarus was under an obligation to prevent similar violations in the future and to ensure that its legislation, in particular the Administrative Offences Code, conforms with the requirements of article 19(3) of the Covenant.

 

Belarus must now submit its written response within six months of the Committee’s decision, including any information on the action taken in light of the Committee’s recommendations, and ensure that the Committee’s decision is published widely.

 

Sam Hunter Jones is an international lawyer, based in Paris. 

 
 
© by The International Service for Human Rights (ISHR) 2019